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No. 29839 -- State of West Virginia v. Robert F. McClain
Starcher, J., concurring:
In my judgment,
the dissent is incorrect in asserting that the majority
opinion is fundamentally unsound.
The dissent delivers a dazzling dissertation on the difference between
suspending imposition of a sentence and suspending execution of a sentence that
has been imposed. The dissent also eloquently elucidates the nature of probation as
a matter of grace and a privilege of conditional liberty, and adds an erudite
explanation of good time as an act of legislative grace -- in the intricacies of which
this Court should not meddle.
From all this, the dissent concludes that the majority opinion had little
understanding of its own rationale and has actually invaded the province of the
legislature; pronouncing that henceforth only those sufficiently wealthy to obtain pre-
conviction bail will not be put on probation.
All of this discourse, however, ignores the simple fact that being locked
up in jail is the same whether one is locked up because he or she cannot make bail, or
as a condition of probation. In both cases, the privilege of conditional liberty is not
being enjoyed by the person who is locked up.
Thus if there must be no difference between the rich and the poor in our
system of justice, and if the period of time for which one on probation may be locked
up is strictly delimited by the Legislature, then the promise of equal treatment for rich
and poor alike will only be fulfilled by giving credit for the time one is locked up in
jail -- before, during or after conviction.
To reiterate: being locked up is being locked up. The niceties of
suspending imposition of sentence versus suspending a sentence, of grace and
privilege of conditional liberty, etc. are beside the point. If the statutory limit of
permissible incarceration for a person who is put on probation for a given crime is X
days, then under the majority opinion a defendant who is locked up will not be locked
up for more than that number of days. Under the reasoning of the dissent, it would
depend on whether the defendant made bail. In this difference lies the fundamentally
sound law that is announced by the majority opinion.
Personally and as a policy matter, I would favor giving circuit judges the
flexibility to add more jail time to certain probationers -- because I believe that such
flexibility will encourage judges to use probation more. But the statutory prescription
is clear, and it is not fundamentally unsound to adhere to the clear legislative
Accordingly, I join the majority opinion.